The Legal Legacy of Slavery

On March 15, 2015, Edward Ball, author of Slaves in the Family had an excellent opinion piece in the “New York Times” in which he discusses the enduring legacy of slavery. He wrote:

In popular memory – in white memory – the plantations of the antebellum South were like a necklace of country clubs strewn across the land.”

Certainly this is the popular conception promulgated by the widely-read book and widely-seen movie “Gone With the Wind.” But as Ball clarifies:

In reality, they were a chain of work camps in which four million were imprisoned. Their inhabitants, slaves, were very much survivors, in the Holocaust sense of that word.”

But, he notes, people claim that was in the distant past, and everything has changed. He proposes a thought experiment:

If by some method of time travel the former slaves and slaveholders of [any] plantation could be brought face to face with us, they would not find our world entirely alien. In place of the rural incarceration of four million black people, we have the mass incarceration of one million black men. In place of laws that prohibited black literacy throughout the South, we have campaigns by Tea Party and anti-tax fanatics to defund public schools within certain ZIP codes. And we have stop-and-search policing, and frequently much worse, in place of the slave patrols.”

Importantly, he brings up the findings of the U.S. Department of Justice in its investigation of Ferguson, Missouri.

As the “New York Times” reported:

Ferguson, Mo., is a third white, but the crime statistics compiled in the city over the past two years seemed to suggest that only black people were breaking the law. They accounted for 85 percent of traffic stops, 90 percent of tickets and 93 percent of arrests. In cases like jaywalking, which often hinge on police discretion, blacks accounted for 95 percent of all arrests.

The racial disparity in those statistics was so stark that the Justice Department has concluded in a report scheduled for release on Wednesday that there was only one explanation: The Ferguson Police Department was routinely violating the constitutional rights of its black residents.”

As Slate captioned this picture:  "The Ferguson Police Department seems unaware of the First Amendment. Also the Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth."  Photo by Joe Raedle/Getty Images

As Slate captioned this picture: “The Ferguson Police Department seems unaware of the First Amendment. Also the Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth.” Photo by Joe Raedle/Getty Images

And although blacks were twice as likely to be searched as white citizens, blacks were 26 percent less likely to have actual contraband.

Ball adds:

…according to Attorney General Eric H. Holder Jr., the courts of the largely black and yet white-run town use arrests and fines against African-Americans to raise revenue and keep the city budget from falling into deficit.”

He emphasizes that it is hard to imagine Ferguson is alone in its discriminatory practices.

Even if such behavior is more widespread, is this the same as antebellum treatment of blacks? No, Ball answers, that would be an overstatement. Nevertheless:

…lying behind such recent events is a mentality that originates during the slave period, and provides police action with an unconscious foundation. A mentality that might be called part of the legacy of slavery.”

March 26, 2004 – John Roberts Makes the Case For Judicial Minimalism

On this day in history, the United States Court of Appeals, District of Columbia Circuit, decided the case of PDK Laboratories v. U.S. Drug Enforcement Administration (362 F.3d 786, 2004).

John Roberts, now Chief Justice of the U.S. Supreme Court but then serving on the Court of Appeals, concurred in part with the judgment filed by Circuit Judge Randolph in a case involving the DEA’s interpretation of the regulation of ephedrine.

Chief Justice John Roberts

Chief Justice John Roberts

Judge Roberts wrote in his concurrence:

I agree with the majority that PDK has standing to seek review of DEA’s suspension order, and that the order must be vacated because it relies, in significant part, upon a conclusion that PDK violated certain export notification regulations — a conclusion that contradicted relevant agency precedent without explanation. This much is not terribly controversial; DEA conceded its error and all but conceded that this court should remand the decision on that basis. See DEA Br. 59 (“we acknowledge that, in such circumstances, the ordinary practice would be a remand to the agency”). This is a sufficient ground for deciding this case, and the cardinal principle of judicial restraint — if it is not necessary to decide more, it is necessary not to decide more — counsels us to go no further. [emphasis added]

My brethren, however, are not content with this narrow and effectively conceded basis for disposition, and instead adopt an alternative ground of far broader significance, one that precipitates disagreement among us but at the end of the day leads to the same result — vacatur and remand to the agency. I cannot go along for that gratuitous ride.”

As Chief Justice, Roberts has continued to follow the advice with which he began and ended his partial concurrence in PDK Laboratories:

I end where I began — with regret that the majority feels compelled to address far-reaching questions on which we disagree, when they are wholly unnecessary to the disposition of the case. As Justice Frankfurter once put it: ‘These are perplexing questions. Their difficulty admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.’ Whitehouse v. Illinois Central R. Co., 349 U.S. 366, 372-73, 75 S.Ct. 845, 850, 99 L.Ed. 1155 (1955).”

March 24, 1953 – Langston Hughes Testifies Before Senator Joseph McCarthy

Joseph Raymond McCarthy (November 14, 1908 – May 2, 1957) was an American politician who served as a Republican U.S. Senator from Wisconsin from 1947 until his death in 1957. He was most notable for making claims that there were large numbers of Communists and Soviet spies and sympathizers inside the federal government and elsewhere. With Republicans taking control of the Senate in 1953, McCarthy became Chairman of the Committee on Government Operations and the Subcommittee on Investigations. In this capacity, he held hearings (later known as the Army-McCarthy Hearings because of McCarthy’s investigation of the Army Signal Corps), during which he called 395 witnesses to testify against themselves and others.

Senator Joseph McCarthy

Senator Joseph McCarthy

African-Americans who vocalized objections to the treatment of blacks in America were considered suspect by McCarthy (and by the FBI). Two of the witnesses called to appear before McCarthy were black: the political activist Eslanda Robeson, wife of Paul Robeson, and the poet Langston Hughes. (At the time of the hearings, there were few blacks in influential positions.)

On March 24, 1953, Langston Hughes testified before the Subcommittee. He was permitted to read a statement to defend himself from charges of Soviet sympathies. He began by stating “I was born a Negro.” He went on to delineate just what that meant in American society at that time. He could not attend the nearby school, the movie theater wouldn’t admit him, white boys stoned him, and his father left the country because this country would not admit him to the bar. At his high school, primarily attended by very poor immigrants, follow students began to tell him about Eugene Debs, a well-known socialist in the early 1900’s. Hughes stated:

“I became interested in whatever I could read that Debs had written or spoken about. I never read the theoretical books of socialism or communism or the Democratic or Republican party for that matter, and so my interest in whatever may be considered political has been non-theoretical, non-sectarian, and largely really emotional and born out of my own need to find some kind of way of thinking about this whole problem of myself, segregated, poor, colored, and how I can adjust to this whole problem of helping to build America when sometimes I can not even get into a school or a lecture or a concert or in the South go the library and get a book out.”

Langston Hughes

Langston Hughes

He went on in this vein for a little longer, but by then, the Senators realized they were better off without tackling Hughes. The Subcommittee dismissed him.

Throughout the early 1950s, McCarthy continued to make accusations of communist infiltration of the U. S. government. In August, 1954, a Senate committee was formed to investigate censuring McCarthy. In December, the Senate voted 67-22 to condemn McCarthy, calling his behavior as a committee chairman “inexcusable,” “reprehensible,” and “vulgar and insulting.” Though he remained in the Senate, McCarthy thereafter was largely ignored by the Congress, the White House, and most of the media.

The term “McCarthyism,” coined in 1950 in reference to McCarthy’s practices, was soon applied to similar anti-communist pursuits. Today the term is used more generally to refer to public attacks on the character or patriotism of political opponents.

The McCarthy Committee might have saved themselves some embarrassment by reading the poetry of Langston Hughes before calling upon him to testify.

Democracy will not come
Today, this year
Nor ever
Through compromise and fear.

I have as much right
As the other fellow has
To stand
On my two feet
And own the land.

I tire so of hearing people say,
Let things take their course.
Tomorrow is another day.
I do not need my freedom when I’m dead.
I cannot live on tomorrow’s bread.

Is a strong seed
In a great need.

I live here, too.
I want freedom
Just as you.

Langston Hughes, Democracy, 1949


March 7, 1850 – Daniel Webster Says Lets Not Worry About Slavery; Union is More Important

On this day in history, the famous Whig Senator from Massachusetts spoke in Congress in favor of the “Compromise of 1850” which allowed California into the Union as a free state in exchange for a stronger Fugitive Slave Act.

Senator Daniel Webster

Senator Daniel Webster

Webster, to the shock of his fellow northerners, criticized opponents of the Fugitive Slave Law, advising them they had a constitutional duty to return slaves who had escaped into the free states, saying:

No man fulfills his duty in any legislature who sets himself to find excuses, evasions, escapes from this constitutional obligation.”

Webster claimed slavery was a matter of historical reality rather than a moral question. He strove to avoid a civil war and to preserve the Union. To that end, he concluded:

And now, Mr. President, instead of speaking of the possibility or utility of secession, instead of dwelling in those caverns of darkness, instead of groping with those ideas so full of all that is horrid and horrible, let us come out into the light of day; let us enjoy the fresh air of Liberty and Union; let us cherish those hopes which belong to us; let us devote ourselves to those great objects that are fit for our consideration and action; let us raise our conceptions to the magnitude and the importance of the duties that devolve upon us; let our comprehension be as broad as the country for which we act, our asperations as high as its certain destiny; let us not be pigmies in a case that calls for men.”

Unfortunately, he meant only for whites not to dwell in “caverns of darkness” and only for whites to “enjoy the fresh air of Liberty and Union.”

Northern abolitionists were incensed, convinced Webster had sold out moral principles for a chance to appease Southerners and northern textile merchants in order to win the presidency. (In fact, several hundred New York businessmen sent him a letter of thanks and a gold watch.)

On March 11 New York Senator William H. Seward countered Webster with his “Higher Law” speech, thundering out the moral precepts that Webster seemed to have abjured.

But there is a higher law than the Constitution, which regulates our authority over the domain, and devotes it to the same noble purposes. … I cannot stop to debate long with those who maintain that slavery is itself practically economical and humane. I might be content with saying that there are some axioms in political science that a statesman or a founder of states may adopt, especially in the Congress of the United States, and that among those axioms are these: That all men are created equal, and have inalienable rights of life, liberty, and the choice of pursuits of happiness; that knowledge promotes virtue, and righteousness exalteth a nation; that freedom is preferable to slavery, and that democratic governments, where they can be maintained by acquiescence, without force, are preferable to institutions exercising arbitrary and irresponsible power.”

William Seward, 1851

William Seward, 1851

March 4, 1909 – Newly Elected President Taft Applauds the End of Racism in the South

On this day in history, a mere twelve years after the Supreme Court sanctioned racial segregation in public facilities in Plessy v. Ferguson, William Howard Taft delivered his inaugural address, speaking in depth about all the progress made in the South toward the rights of African Americans.

U.S. President, William Howard Taft, center, reviewing the parade after his inauguration as 
President March 4, 1909.

U.S. President, William Howard Taft, center, reviewing the parade after his inauguration as 
President March 4, 1909.

The new president assured his fellow Americans, in a variation of “some of my best friends are blacks”:

I have not the slightest race prejudice or feeling, and recognition of its existence only awakens in my heart a deeper sympathy for those who have to bear it or suffer from it, and I question the wisdom of a policy which is likely to increase it.”

He then discussed the Fifteenth Amendment (which granted African American men the right to vote by declaring that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”).

President Taft admitted that the fifteenth amendment had not been generally observed in the past, but “the tendency of Southern legislation today is toward the enactment of electoral qualifications which shall square with that amendment.”

When President Taft took office, however, as Ira Katznelson observes in his book Fear Itself: The New Deal and the Origins of Our Time,

By 1908, the South had perfected a political system to guard white supremacy successfully even in counties with black majorities. A host of mechanisms ensured virtually no chance to vote for African-Americans, and a low-turnout franchise for white citizens. These devices included white primaries, declarations that political parties were restricted private clubs, poll taxes, property tests, literacy tests, and understanding clauses that tested for arcane knowledge of the provisions in state constitutions.”


In fact, throughout the years since 1900, racial conflict had plagued the nation. Some of the better known race riots include incidents in New Orleans, Louisiana in 1900, Springfield, Ohio in 1904, Brownsville, Texas, in 1906 and Springfield, Illinoisin 1908.

Legislation designed to solify “Jim Crow” practices in the South also proliferated in this time period, such as anti-miscegenation laws (Alabama, 1901; Florida, 1903, Mississippi 1906, Louisiana, 1908), as well as provisions mandating separation of schools and public accommodations. The Ku Klux Klan was also gaining ground again in the South, destined to reach its peak in the 1920s.


President Taft contradicted himself in the speech, by acknowledging that “race feeling” is in some instances “widespread and acute.” He counseled that in those circumstances, however, governments should avoid exacerbating the problem by appointing members of the negro race to local public offices. This might, after all, “interfere with the ease and facility with which the local government business can be done by the appointee.”

Above all, Taft insisted:

…so long as the statutes of the States meet the test of [the Fifteenth Amendment] and are not otherwise in conflict with the Constitution and laws of the United States, it is not the disposition or within the province of the Federal Government to interfere with the regulation by Southern States of their domestic affairs.”

President William Howard Taft.

February 25, 1960 – Anti-segregation Sit-in at the Montgomery, AL County Courthouse

On this day in history, students from Alabama State College (a traditionally African American college in Montgomery, Alabama), stated an anti-segregation sit-in at a lunch counter in the Montgomery County Courthouse. In response, the store-owners closed the lunch counter and a mob of pro-segregationists physically assaulted the students.

Student sit-in participants

Student sit-in participants

Four days later, on February 29, Alabama Governor John Patterson held a news conference to condemn the sit-in. Patterson, who was also chairman of the State Board of Education, threatened to terminate Alabama State College’s funding unless it expelled the student organizers and warned that “someone [was] likely to be killed” if the protests continued.

On March 1, more than 1000 protesters marched from the campus to the state capitol and back. On March 2, Alabama’s all-white State Board of Education unanimously accepted then-Gov. John Patterson’s expulsion resolution. Under pressure, then-ASU president Harper Councill Trenholm expelled the nine students identified as sit-in leaders and suspended 20 other students.

On Sunday March 6, protesters began to gather at the Dexter Avenue Baptist Church, led by Rev. Ralph Abernathy – a well-known member of Dr. Martin Luther King, Jr.’s Southern Christian Leadership Conference (SCLC) and organizer of the Montgomery Bus Boycott. A crowd of whites surrounded the church, physically assaulting some members of the march and forcing them to flee into the church. It was reported that the city fire company brought two fire trucks to the scene and used the high-powered fire hoses on retreating protesters; soon after this, the police dispersed the crowds and ended the protest.

A white man swinging a baseball bat at a black woman the day after the black students were refused service at the courthouse cafeteria

A white man swinging a baseball bat at a black woman the day after the black students were refused service at the courthouse cafeteria

More than 1000 students immediately pledged a mass strike, threatened to withdraw from the school, and staged days of demonstrations; 35 students, a faculty member, and a physician were arrested. Montgomery Police Commissioner L.B. Sullivan recommended closing the college, which he claimed produced only “graduates of hate and racial bitterness.”

Dr. King sent a telegram to President Eisenhower on March 9, writing:


Meanwhile, six of the nine expelled students sought reinstatement through a federal lawsuit. (On August 4, 1961, in Dixon v. Alabama State Board of Education (294 F. 2d 150, 5th Cir. 1961) a federal court upheld the expulsions and barred the students’ readmission to the school.)

On February 25, 2010, in a ceremony commemorating the fiftieth anniversary of the sit-in, Alabama State University (formerly Alabama State College) President William Harris reinstated the nine students, criticized Governor Patterson’s “arbitrary, illegal and intrusive” role in forcing the expulsions, and praised the student protest as “an important moment in civil rights history.” Three of the men, James McFadden, St. John Dixon and Joseph Peterson, received honorary degrees.

Guantanamo  Prisoners

Post by James A. Broderick, J.D., M.B.A.

Much debate about the holding of prisoners at Guantanamo centers on the question of whether it is unconstitutional or at least illegal to hold them indefinitely without charging them with a crime.  This memo is written in response to that sentiment. 


The Sixth Amendment of the U.S. Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

The scope of the amendment is limited to “criminal prosecutions” for “crimes” committed in a “State” of the United States.  Note that none of these key terms [“criminal prosecutions,” “crimes,” or “State”] apply to the theory under which the prisoners are being held at Guantanamo. 

Instead, they are being held as “enemy combatants,” a term that first appeared in Supreme Court jurisprudence in Ex Parte Quirin, 317 U.S. 1  (1942).   There the Supreme Court reviewed the decision of a military tribunal to execute eight German agents who had secretly come ashore in the United States after arriving on a German submarine.  This of course happened during World War II.  They were not wearing uniforms at the time of their arrest and were found to have intended to commit sabotage.  They were captured on July 2, 1942, and by July 31, their trial and appeal to the Supreme Court were completed.  On August 8, 1942, six of them were executed in the electric chair!  Talk about “speedy” if not very “public” justice.  

The Supreme Court held that as enemy combatants they were (1) “subject to capture and detention”; (2) not entitled to the status of “prisoner of war”; and (3) subject to trial by military tribunals, not civil courts. The Court reasoned:

 … the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.”

Obviously the issue of how promptly the prisoners’ status was to be reviewed by a tribunal did not arise in this case.  One suspects that the enemy combatants in the Quirin case would have appreciated a somewhat more leisurely adjudication.

One issue raised in discussions is whether the Guantanamo prisoners could legally be held without a specific declaration of war.  The answer is clearly yes.  Article I, Section 8 of the Constitution grants Congress the power “to declare war,” but does not further define or elaborate the term.  Congress has enacted a specific declaration of war only five times, but has authorized military action at least 13 other times.  (The five wars declared by Congress were (1) the War of 1812; (2) the Mexican War; (3) the Spanish-American War; (4) WWI; and (5) WWII.) In an additional seven instances the United States has engaged in extended military engagements that were authorized by United Nations Security Council Resolutions and funded by appropriations from Congress.  The power of the military to take and hold prisoners has never been seriously questioned or litigated in any of those actions.


In 1973, Congress passed the so-called War Powers Resolution in an attempt to limit the power of the President to initiate military action as Commander in Chief without Congressional approval.  [It should be noted that Bill Clinton ignored the Resolution when he allowed American military action in Kosovo to persist beyond the 60-day grace period the law granted without congressional approval.  As Jason Kelly observed in his review of the book The Executive Unbound: After the Madisonian Republic by Eric Posner and Adrian Vermuele (Oxford University Press, 2011),  “Clinton’s actions exemplified the authority inherent in the office.”

In any event, the War Powers Resolution has never been overtly challenged by any President.   In the present conflict with Al Qaeda and the Taliban, both Presidents Bush and Obama have relied on a specific resolution of Congress,  2001 Authorization for Use of Military Force (“AUMF,” P.L. 107-40) passed on September 14, 2001.  The resolution provides in part:

Section 2 – Authorization For Use of United States Armed Forces

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.”

So the President has Congressional authorization to “use all necessary and appropriate force against…persons he determines . . . aided the [9-11] attacks or harbored such . . . persons in order to prevent any future acts of . . . terrorism. . . . (Emphasis supplied.)”  That would seem to include the power to hold as prisoner any Al Qaeda member for as long as necessary to “prevent any future acts of terrorism.”

The rights of the prisoners at Gitmo have been extensively litigated, with several cases reaching the Supreme Court.


In Rasul v. Bush, 542 U. S. 466 (2004), the Supreme Court expressly refrained from addressing whether the detainees are being held illegally or how that question should be decided.  It stated that it decided only that “the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing” and sent the case back “for the District Court to consider in the first instance the merits of [the detainees’] claims.”

In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Court ruled on the procedural rights of a U.S. citizen who was captured in Afghanistan.  The U.S. Court of Appeals for the Fourth Circuit had held that Hamdi was entitled to bring a habeas corpus action, but that, because he was captured on the battlefield, the federal courts should give complete deference to the government’s decision to hold him incommunicado in military custody.   The Supreme Court ruled that, by enacting the authorization for the use of military force in Afghanistan, Congress had authorized Hamdi’s detention as an enemy combatant, but that he must be given a meaningful opportunity to demonstrate, with the assistance of counsel, that he was in fact an innocent civilian. Justice O’Connor’s plurality opinion implied that the required evidentiary hearing could be held in “an appropriately authorized and properly constituted military tribunal” rather than a federal court. 


As to the nature of the grounds for detention in Hamdi, Justice O’Connor stated that the authority to detain enemy soldiers in order to prevent their return to the battlefield to take up arms again has always been a “fundamental incident of waging war.”  The laws of war, including the Geneva Conventions, recognize that uniformed members of an enemy army may be detained as prisoners of war until the end of the hostilities without charges, trial, or access to counsel. The purpose of such detention is to prevent their return to the battlefield and does not depend upon any determination that they have committed any wrongdoing. 

The law of war also recognizes that individuals captured fighting in an armed conflict who have not abided by rules (such as wearing uniforms and carrying their arms openly) that are intended to allow their identification as enemy soldiers are not entitled to prisoner of war status.  Such “irregulars” may also be detained until the end of the conflict.  These irregulars do not have a uniformed soldier’s immunity for killing, and thus are subject to criminal prosecution for murder or battery, and (as seen in Quirin) they can be executed as spies or saboteurs.  These rules are consistent with both due process and military necessity.  However, the law of war provides no authority for detaining without charge individuals not found on the battlefield. 

No serious challenge to the concept of detaining enemy combatants has been mounted since the Hamdi case.  Other litigation involving the Gitmo detainees has focused on the procedures they may employ to challenge their status as enemy combatants.  Thus the principal issue in subsequent litigation is whether the prisoner is an enemy combatant or an innocent civilian, not whether he has committed a crime.


After the Hamdi case, the Department of Defense set up Combat Status Review Tribunals in 2004 to review the status of prisoners.  The rules of procedure for the tribunals allowed them to hear and consider hearsay evidence, and suspects were restricted from attempting to refute or learn about evidence against them that was classified, and evidence extracted using “enhanced interrogation techniques” was deemed admissible. 

Then, in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the Supreme Court ruled that only Congress and not the Executive Branch has the Constitutional authority to set up military commissions to try captives. As to the merits of the case, the Court held that Common Article 3 of the Geneva Conventions of 1949 applies to persons captured in the conflict with Al Qaeda.  That provided the prisoners a minimum baseline of protections, including protection from “passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, [and] affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”  The Court held that the military commissions were not “regularly constituted” because they deviated too far from the rules that apply to courts-martial under the Uniform Code of Military Justice without a satisfactory explanation of the need for departing from those rules. In particular, the Court decried commission rules allowing the exclusion of the defendant from attending portions of his trial or hearing some of the evidence against him.

In response, Congress then passed the Military Commissions Act of 2006 in October, creating Military Commissions similar to those set up by the Department of Defense and retaining most of the features that had concerned critics.  In addition, the Act also attempted to quash all pending habeas corpus submissions on behalf of the captives.


In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court ruled that the right to habeas corpus procedures extended to all the Guantanamo prisoners despite the fact that they were not confined in the United States and that the Military Commissions Act was an unconstitutional suspension of that right. 

Following the Boumediene decision, federal judges began closely scrutinizing the quality of evidence offered by the government, and government lawyers started losing cases. The Center for Policy and Research at Seton Hall University School of Law found that between 2008 and July 2010, Guantanamo detainees won 19 of 34 of their habeas challenges in federal court, indicating that in many cases, the government did not have evidence that would pass muster in trials conducted under the Federal Rules of Criminal Procedure.  

In 2010 the D. C. Circuit began requiring federal trial judges to stop submitting the government’s evidence to such rigorous examination. After July 2010 and the appeals court ruling, only one of twelve petitions was successful.  Thus, prior to July 2010, federal judges agreed with 56% of detainees who claimed there was insufficient evidence to justify their detention. After July 2010, detainees won only 8% of their cases.  The change is attributed to rulings by the federal appeals court, which reviewed 19 of the Guantánamo habeas cases and reversed or remanded every case in which the trial judge had ordered a detainee’s release.


In December 2011, Congress passed the National Defense Authorization Act for FY2012 (“2012 NDAA,” P.L. 112-81), intended to codify the present understanding of the detention authority conferred by the AUMF, as interpreted and applied by the Executive and the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit).  The NDAA does not address many of the legal issues involving wartime detention that have been left unresolved by the Supreme Court. A Congressional Research Service Report on the subject lists the following unresolved issues: (1) full scope of the Executive’s detention authority; (2) circumstances in which U.S. citizens may be detained as enemy belligerents; (3) the degree to which noncitizens held at Guantanamo and other locations outside the United States are entitled to protections under the Constitution; (4) the authority of federal habeas courts to compel the release into the United States of detainees determined to be unlawfully held if the Executive cannot arrange their release to another country; (5) the ability of detainees to receive advance notice and challenge their proposed transfer to a foreign country; and (6) the appropriate procedural rules and standards of evidence.  According to Jennifer Elsea, the legislative attorney who authored the report, “The full implications of the 2012 NDAA upon judicial activity concerning wartime detention remains to be seen.”  (You can reference this report, which provides an annotated list of all important court rulings bearing on this issue, here.)

Guantanamo Bay

It is misleading (although true) to say that the Guantanamo prisoners are being held without being charged with a crime.  Instead, they are being held as enemy combatants taken prisoner in a military action authorized by Congress.  Under the generally recognized laws of war [there are a few] and recent Supreme Court cases, that means that they are subject to incarceration until the end of hostilities.  In the case of Taliban fighters, that would be until the U.S. withdraws completely from Afghanistan.  In the case of Al Qaeda operatives, that might be the rest of their lives.  

Be that as it may, they are still entitled to some adjudication of their status even if that procedure does not meet Sixth Amendment standards.  Significantly, U.S. Army Regulation 190-8 provides for military hearings [called “Article 5 hearings”] for persons captured on the battlefield to enable them to demonstrate (1) that they are entitled to be held as prisoners of war or (2) that they are in fact innocent civilians.  The regulation gives a detainee the opportunity to testify and to secure the testimony of reasonably available witnesses, but does not afford access to counsel. After the first Gulf War, the military conducted nearly 1200 such hearings, and hundreds of detainees were released as innocent civilians. After the Afghanistan invasion, however, the U.S. government refused to hold a single Article 5 hearing because President Bush declared no one was entitled to POW status. The President’s declaration was criticized by many international law scholars, and, in my opinion, was unwarranted.  I believe it was reasonable for the President to determine that no detainee captured on the Afghan battlefield qualified as a POW:  after all, none were wearing a uniform.  Nevertheless, it was not reasonable to rule in advance that no detainee was an innocent civilian. That is a factual determination which can be made only on a case by case basis. 

Although it was, and perhaps still is, impractical to hold full blown trials on the status of every prisoner, the government could have saved itself a lot of criticism by holding Article 5 hearings.  The Supreme Court has attempted to rectify the situation by extending the right of habeas corpus to Guantanamo.  In addition, and contrary to the assertions of the Bush administration, the Court ruled that the prisoners are entitled to minimal protections afforded by Article 3 of the Geneva Conventions of 1949.

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